17
PROCTOR | November 2015
The multitude of administrative decisions that are made
every day means that practitioners must always remain
aware of the potential presence of bias. Report by
Chris Templeton and Kate Blackford Slack.
“Justice should not only be done,
but be seen to be done.”
1
This famous decree seems only to
be brought to the forefront of collective
community consciousness when high-profile,
politically charged litigation, inquests and
inquiries involve accusations of bias against
decision-makers.
One need only look to the recent decision
in the Royal Commission into Trade Union
Governance and Corruption to observe
the important role it plays in our society.
This article discusses the rule against bias, the
tests as they apply to actual and apprehended
bias, the difference in evidentiary standards
and the different categories of cases in which
apprehended bias is more likely to be found.
The tests
Though both actual and apprehended bias
“connotes the absence of impartiality”
2
of
the decision-maker, there are important
differences between the two types of bias.
Actual bias exists when a decision-maker
has a pre-existing state of mind that disables
them from undertaking, or renders them
unwilling to undertake, a proper evaluation of
the evidence relevant to the decision they are
to make.3 To establish actual bias, there must
be clear and direct evidence about the actual
views or behaviour of the decision-maker.
This is difficult to prove without an admission
by the decision-maker or a clear statement
demonstrating bias.
4
It will also necessitate
requesting that an unpalatable and seriously
adverse personal finding of bias be made
against the decision-maker. Indeed, former
High Court Justice Michael Kirby has
commented that it would be “foolish ... to
assume a heavier obligation when proof
of bias from the perceptions of reasonable
observers would suffice to obtain relief”.
5
Apprehended bias exists when “a fair-
minded and informed person might
reasonably apprehend that the decision-
maker might not bring or have brought an
impartial mind to bear on the decision”.
6Itis
only necessary to establish a real possibility
that the decision-maker was not impartial.7
Nonetheless, a claim of apprehended bias
will not be upheld lightly8 and “substantial
grounds”9 must be established.
Application of the test
The test for apprehended bias is an objective
one10 and involves a question that is “largely
a factual one, albeit one which it is necessary
to consider in the legal, statutory and factual
contexts in which the decision is made”.
11
The test is “one of possibility (real and not
remote), not probability”.
12
While the High Court in the leading case
of Ebner v Official Trustee in Bankruptcy
referred to a two-stage test, more recently
in Isbester v Knox City Council,
13 Gageler J
acknowledged that the expression of the
Ebner test actually involved three steps:
“Step one is identification of the factor which it
is hypothesised might cause a question to be
resolved otherwise than as a result of a neutral
evaluation of the merits. Step two is articulation
of how the identified factor might cause that
deviation from a neutral evaluation of the merits.
Step three is consideration of the reasonableness
of the apprehension of that deviation being
caused by that factor in that way.”
The bias rule prohibits prejudgment but
not predisposition.14 As Gleeson CJ and
Gummow J stated in Minister for Immigration
and Multicultural Affairs v Jia Legeng “...The
question is not whether a decision-maker’s
mind is blank; it is whether it is open to
persuasion ... Natural justice does not require
the absence of any predisposition or inclination
for or against an argument or conclusion.”
15
Who is the ‘fair-minded lay observer’?
The ‘fair-minded lay observer’ is a fictitious
person whose traits have been analysed
extensively. They are: objective, reasonable and
an exemplar of fairness;16 “neither complacent
nor unduly sensitive or suspicious”;17 aware
of community standards and general social
trends and can therefore move with the times;18
“is not necessarily a man nor necessarily of
European ethnicity or other majority traits...”;19
gender neutral;20 devoid of knowledge
about the individual or personal capacities
or characteristics of the specific decision-
maker;21 and, is knowledgeable of all of the
circumstances of the case22 and the substantive
legal principles and proceedings involved.
23
In terms of how the lay observer will
conduct their task, the observer will: give
the issues careful thought rather than
make a snap judgment;24 take a balanced
approach to any relevant information and
consider it within “its overall social, political
or geographical context”;25 and, “consider
all of the facts” in their “proper context”.
26
If the decision-maker is a judicial officer,
the observer will consider that a judicial
officer’s training, tradition and oath or
affirmation equip the officer with the ability
to discard the irrelevant, the immaterial and
the prejudicial27 and “the same, it may be
interpolated, is to be expected of Royal
Commissioners with experience of litigation
at the bar or on the bench”.
28
Categories of apprehended bias
In Webb v R, Deane J described “four
distinct, though sometimes overlapping
main categories” of bias: interest, conduct,
association and extraneous information.
The first three are of most relevance.
Interest refers to the principle that decision-
makers cannot be a party in a case29 or
have a strong commitment to a cause
relevant to a party of a case.30
Conduct predominantly concerns unequal
access of parties to the decision-maker. It
can also arise due to the manner in which
the decision-maker carries out their duty. In
Re Refugee Review Tribunal; Ex parte H,31
the High Court considered a matter in which
bias was claimed because a tribunal member
constantly interrupted and challenged the
applicant’s evidence. It was held that by that
conduct, the tribunal member had moved
beyond a “vigorous testing of the evidence
and a frank exposure of its weakness” to
an environment in which the applicant may
have felt “overborne or intimidated”.
32
Association relates to a decision-maker’s
personal or professional association with the
family of a party or a witness. In assessing
whether an apprehension of bias may exist,
the nature, intensity and duration of the
relationship should be analysed.33
Forums in which the rule applies
The bias rule applies to the courts, tribunals,34
public sector disciplinary tribunals,35 royal
commissions,36 statutory authorities,37 court
officials,38 juries,39 government Ministers,
40
local councils,
41
prison officials,
42
bureaucrats43
and more senior government officials,44
coronial inquiries45 and private arbitrations.
46
While the same test applies to all decision-
makers, the standards expected of members
of tribunals, administrators and Ministers are
more relaxed than those applying to judges.
47
The standard required by the observer would
need to be recalibrated.
Natural justice and due process
back to contents